Office of Profit | Polity for UPSC 2024 (Pre & Mains) PDF Download

 Page 1


O?ce of Pro?t 
MPs and MLAs, as members of the legislature, hold the government accountable for its work. Basic 
disquali?ca?on criteria for an MP are laid down in Ar4cle 102 of the Cons4tu4on, and for an MLA in Ar4cle 
191. They can be disquali?ed for: a) Holding an o?ce of pro?t under government of India or state 
government; b) Being of unsound mind; c) Being an undischarged insolvent; d) Not being an Indian ci?zen or 
for acquiring ci?zenship of another country.  
The essence of disquali?ca?on under the o?ce of pro?t law is if legislators holds an ‘o?ce of pro?t’ under 
the government, they might be suscep?ble to government in?uence, and may not discharge their 
cons?tu?onal mandate fairly. The intent is that there should be no con?ict between the du?es and interests 
of an elected member. Hence, the o?ce of pro?t law simply seeks to enforce a basic feature of the 
Cons?tu?on- the principle of separa?on of power between the legislature and the execu?ve. 
De?ni4on of O?ce of Pro?t 
The word ‘o?ce’ has not been de?ned in the Cons?tu?on or the Representa?on of the People Act of 1951. 
An o?ce of pro?t has been interpreted to be a posi?on that brings to the o?ce-holder some ?nancial gain, 
or advantage, or bene?t. The amount of such pro?t is immaterial. 
In 1964, the Supreme Court ruled that the test for determining whether a person holds an o?ce of pro?t 
is the test of appointment. Several factors are considered in this determina?on including factors such as: (i) 
whether the government is the appoin?ng authority, (ii) whether the government has the power to 
terminate the appointment, (iii) whether the government determines the remunera?on, (iv) what is the 
source of remunera?on, and (v) the power that comes with the posi?on. 
Exemp4ons 
Provisions of Ar?cles 102 and 191 also protect a legislator occupying a government posi?on if the o?ce in 
ques?on has been made immune to disquali?ca?on by law. In the recent past, several state legislatures have 
enacted laws exemp?ng certain o?ces from the purview of o?ce of pro?t.  Parliament has also enacted the 
Parliament (Preven4on of Disquali?ca4on) Act, 1959, which has been amended several ?mes to expand the 
exempted list. 
There is no bar on how many o?ces can be exempted from the purview of the law. It was reported in 2015 
that all 60 MLAs of the Nagaland Assembly had joined the ruling alliance. The Nagaland Chief Minister 
appointed 26 legislators as parliamentary secretaries in July 2017. Goa, an assembly of 40 MLAs, exempted 
more than 50 o?ces by means of an ordinance issued in June last year. Puducherry, an assembly of 33 
MLAs, exempted more than 60 o?ces by passing an amendment bill in 2009.  In Delhi, the 21 
parliamentary secretaries added to the seven ministerial posts would cons?tute 40% of the 70-member 
legislature.  In all, 20 states have similar provisions. 
A  CalcuMa High Court judgment in 2015 which held that since the posi?on of Parliamentary Secretary may 
confer the rank of a junior minister on the legislator, the appointment of MLAs as parliamentary secretaries 
was an abempt by state governments to bypass the cons?tu?onal ceiling on the number of ministers. In 
2009, the Bombay High Court also held that appoin?ng parliamentary secretaries of the rank and status of a 
Cabinet Minister is in viola?on of Ar?cle 164 (1A) of the Cons?tu?on.  The Ar?cle speci?es that the number 
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
Page 2


O?ce of Pro?t 
MPs and MLAs, as members of the legislature, hold the government accountable for its work. Basic 
disquali?ca?on criteria for an MP are laid down in Ar4cle 102 of the Cons4tu4on, and for an MLA in Ar4cle 
191. They can be disquali?ed for: a) Holding an o?ce of pro?t under government of India or state 
government; b) Being of unsound mind; c) Being an undischarged insolvent; d) Not being an Indian ci?zen or 
for acquiring ci?zenship of another country.  
The essence of disquali?ca?on under the o?ce of pro?t law is if legislators holds an ‘o?ce of pro?t’ under 
the government, they might be suscep?ble to government in?uence, and may not discharge their 
cons?tu?onal mandate fairly. The intent is that there should be no con?ict between the du?es and interests 
of an elected member. Hence, the o?ce of pro?t law simply seeks to enforce a basic feature of the 
Cons?tu?on- the principle of separa?on of power between the legislature and the execu?ve. 
De?ni4on of O?ce of Pro?t 
The word ‘o?ce’ has not been de?ned in the Cons?tu?on or the Representa?on of the People Act of 1951. 
An o?ce of pro?t has been interpreted to be a posi?on that brings to the o?ce-holder some ?nancial gain, 
or advantage, or bene?t. The amount of such pro?t is immaterial. 
In 1964, the Supreme Court ruled that the test for determining whether a person holds an o?ce of pro?t 
is the test of appointment. Several factors are considered in this determina?on including factors such as: (i) 
whether the government is the appoin?ng authority, (ii) whether the government has the power to 
terminate the appointment, (iii) whether the government determines the remunera?on, (iv) what is the 
source of remunera?on, and (v) the power that comes with the posi?on. 
Exemp4ons 
Provisions of Ar?cles 102 and 191 also protect a legislator occupying a government posi?on if the o?ce in 
ques?on has been made immune to disquali?ca?on by law. In the recent past, several state legislatures have 
enacted laws exemp?ng certain o?ces from the purview of o?ce of pro?t.  Parliament has also enacted the 
Parliament (Preven4on of Disquali?ca4on) Act, 1959, which has been amended several ?mes to expand the 
exempted list. 
There is no bar on how many o?ces can be exempted from the purview of the law. It was reported in 2015 
that all 60 MLAs of the Nagaland Assembly had joined the ruling alliance. The Nagaland Chief Minister 
appointed 26 legislators as parliamentary secretaries in July 2017. Goa, an assembly of 40 MLAs, exempted 
more than 50 o?ces by means of an ordinance issued in June last year. Puducherry, an assembly of 33 
MLAs, exempted more than 60 o?ces by passing an amendment bill in 2009.  In Delhi, the 21 
parliamentary secretaries added to the seven ministerial posts would cons?tute 40% of the 70-member 
legislature.  In all, 20 states have similar provisions. 
A  CalcuMa High Court judgment in 2015 which held that since the posi?on of Parliamentary Secretary may 
confer the rank of a junior minister on the legislator, the appointment of MLAs as parliamentary secretaries 
was an abempt by state governments to bypass the cons?tu?onal ceiling on the number of ministers. In 
2009, the Bombay High Court also held that appoin?ng parliamentary secretaries of the rank and status of a 
Cabinet Minister is in viola?on of Ar?cle 164 (1A) of the Cons?tu?on.  The Ar?cle speci?es that the number 
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
of ministers including the Chief Minister should not exceed 15% of the total number of members in the 
assembly. 
New Developments 
The Central Government is planning a cons?tu?onal amendment to exempt advisors that are appointed by 
the Government or States and carry legal func?ons to be discharged for legisla?ve func?ons to be 
recognised as 'o?ce of pro?t’. The amendment is trying to de?ne the term ‘o?ce of pro?t' as any o?ce 
under the control of the Union Government or state government whether or not their salaries are paid to 
them through public revenue.  
The amendment proposes that anybody or any organisa4on which may be wholly or par4ally owned by the 
Central Government or the State Government and pays the salary or remunera4on for the holder of such 
an o?ce is also included in the proposed de?ni?on; any o?ce in which it’s government occupant/holder is 
capable of exercising execu?ve powers delegated by the government, including land allotment, issuing of 
license or permit, making public appointments or gran?ng favours of ‘substan?al nature’ which may be 
legisla?ve, judicial or quasi-judicial.  
The amendment proposes to include those holding advisory posi?ons for Union or State Governments in 
the category of ‘o?ce of pro?t’. The amendment also seeks to de?ne the salaries and remunera4on and 
‘compensatory allowance’ to minimise the scope for any ambiguity. The amendment also says that if the 
o?ce is seeking any kind of salary or remunera?on, it will be deemed as ‘o?ce of pro?t’.  
The amendment also seeks to de?ne remunera?on as ‘any pecuniary gain commensurate with the status 
and responsibili?es abached to the o?ce but shall not include the expenditure incurred on the sta? and 
infrastructure for running o?ce’. Similar amendments h ave been proposed for Ar?cle 91. The ministry 
proposes the view that the ‘o?ce of pro?t’ will now be governed by Parliament (Preven?on of 
Disquali?ca?on) Act, 1959, or by the corresponding state enactments.  
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com